The Occupational Safety and Health Appeals Board (Board), acting pursuant to
authority vested in it by the California Labor Code and having granted the petition
for reconsideration filed in the above-entitled matter by the Division of Occupational
Safety and Health [Division], makes the following decision after reconsideration.

JURISDICTION

On August 25, 1999, a representative of the Division conducted an accident
investigation at a place of employment maintained by Nursery Supplies, Inc.
(Employer) at 534 West Struck Avenue, Orange, California (the site). On September
17, 1999, the Division issued to Employer a citation alleging a serious violation
of section1 4184(b) [machine not guarded
to prevent accidental contact with trimming knives], with a proposed civil penalty
of $5,000.

Employer filed a timely appeal contesting the classification2
of the alleged violation.

A hearing was held before an Administrative Law Judge (ALJ) of the Board in
Anaheim, California. Keith Sharp, Attorney, represented Employer. Alan Coie,
Staff Counsel, represented the Division.

On October 5, 2000, the ALJ issued a decision granting Employers appeal
and vacating the proposed civil penalty.

On November 9, 2000, the Division filed a petition for reconsideration. Employer
filed an answer. The Board granted the Divisions petition on December
21, 2000.

EVIDENCE

Employer makes blow molded plastic pots at the site. The molded pots are carried
in U shaped cradles on a conveyor from the molder into the trimmer
machine. Inside the trimmer machine are knives [sometimes called hammers]
that trim off excess plastic from the bottom of the pots. On August 23, 1999,
Employers employee, Guillermo Aguilar [Aguilar], suffered an amputation
of his right thumb and a partial amputation of his right index finger when he
reached into the trimmer machine to adjust a misaligned pot on the conveyor.
The next pot in line behind the misaligned pot, according to Aguilar, hit his
elbow causing his arm to be pushed forward and his hand to make contact with
the trimmer knives. Aguilar testified [through a Spanish interpreter] that he
did not have to remove any guard when he reached into the machine. He further
testified that there was a kind of guard covering the knives with
a safety gate mechanism which one lifts in order to stop the
hammers so that they stop working. Aguilar said that Employers
safety policy required adjustment or un-jamming of the pots to be made by lifting
the safety gate. He said he was trained on the trimmer machine and
he knew that reaching into the machine violated Employers safety policy.
Other un-refuted testimony established that Employer actively enforces its safety
program by disciplining employees for safety violations through a progressive
discipline system.

Alex Uriarte [Uriarte], the Division inspector, testified that he observed
no protection on the trimmer machine that would prevent some one from coming
in contact with the knives. He also testified that the safety gate
was a Plexiglas cover on top of the trimmer machine that Employer told him was
an interlock that would stop the machine when lifted.

Uriarte issued a citation for a serious violation of section 4184(b). He said
he determined the violation was serious and accident related and that Employer
acknowledged that the condition of the machine had been the same in the past
as it was on Uriartes initial inspection. He proposed a civil penalty
of $5,000.

The citation alleged a serious violation of section 4184(b) and stated: The
plastic trimming machine was not guarded in a manner that would prevent accidental
contact with the trimming knives. Section 4184(b) provides:

All machines or parts of machines, used in any industry or type of work not
specifically covered in Group 8, which present similar hazards as the machines
covered under these point of operation orders, shall be guarded at their point
of operation as required by the regulations contained in Group 8.

Title 8, Article 54, California Code of Regulations [CCR] addresses the scope
of the point of operation guarding requirements. Section 4184(a) provides:

Machines as specifically covered hereafter in Group 8, having a grinding,
shearing, punching, pressing, squeezing, drawing cutting, rolling,
mixing or similar action, in which an employee comes within the danger zone3
shall be guarded at the point of operation in one or a combination
of the ways specified in the following orders, or by other means or methods
which will provide equivalent protection for the employee. (Emphasis added)

Section 4186(b) requires that All point of operation guards shall be
properly set up, adjusted and maintained in safe and efficient working condition
in conformance with Figure G-8 and Table G-3 or other guard configurations which
will prevent the operators hand from entering the point of operation.
(Emphasis added)

Point of operation is specifically defined in section 4188(a) as
[t]hat part of a machine which performs an operation on the stock or material
and/or that point or location where stock or material is fed to the machine.4
The point of operation was at the knives that performed the trimming of the
excess plastic from the pots inside the machine. This was the point where the
point of operation guard was required and not provided. The danger zone was
the distance from the entryway of the pots to the knives and it was not greater
than an arms length inside the trimmer machine.5

Our independent review of the evidence confirms the absence of any adequate
guard at the knives that operated to trim the excess plastic from the pots inside
the trimmer machine. The photographs, coupled with Aguilars testimony,
disclose that the opening through which the conveyor delivers the stock to the
knives is sufficiently large to admit ones hand and arm into the danger
zone.

It is undisputed that the only machine guard that existed on the trimmer machine
at the time of the accident was the interlock on the top of the machine which
stopped all machine movement when the Plexiglas lid was lifted. It was also
established that Employers safety policy required that access to the machine
for purposes of adjustment or to un-jam the machine be made through this interlocked
lid. There is also no doubt that Aguilars injury occurred when he reached
into that part of the trimmer machine where the stock is fed to the machine
on a conveyor belt and the excess plastic is trimmed from the pots by operation
of the trimmer knives. There was no guard to prevent Aguilars hand from
contact with the knives at the point where the pots encountered the knives and
where Aguilar reached in far enough for the knives to amputate his fingers.

Employers trimming machine had a cutting action as do other machines
specifically covered in the Group 8, Point of Operation and Other Hazardous
Parts of Machinery requirements, but it is a machine that is not itself
specifically covered. As noted above, section 4184(a) requires point of operation
guarding of machines having a cutting or similar action
either as specified for that type of machine in Group 8 or by other means
or methods which provide equivalent protection. Section 4184(b)
imposes the same guarding requirements for machines that are not specifically
covered in Group 8 but present point of operation hazards similar to those that
are specifically covered. (McDonnell Douglas Aerospace, Cal/OSHA App.
94-2331, Decision After Reconsideration (Oct. 14, 1999).) Since there is no
specific plastic trimmer machine covered in Group 8, and since Employers
trimmer machine had a cutting action similar to that of other machines specifically
covered in Group 8, section 4184(b) was the proper section under which to cite
Employer. (See Round Table Franchise Corp., Cal/OSHA App. 85-462, Decision
After Reconsideration (Nov. 10, 1987).)

The record is devoid of any indication of the type of knives installed inside
the trimmer machine. What has been established by competent testimony is that
inside the trimmer machine knives operated to trim excess plastic from the pots.
These knives were the cause of an amputation injury to Aguilar.

Group 8 contains 21 articles, many of which deal with cutting actions.6
What is common to all of the cutting action requirements is that they prevent
the operators hands or fingers from contacting the knives.

In the instant case Employers trimming machine bore some resemblance
to the Saw covered in Article 74, section 4640, Cotton Gins and
Seed Cotton Processing Machines of Group 8. Section 4640(a) provides that All
gin stands [a machine used to separate cotton seeds from the cotton]
shall be provided with a positive guard which shall be designed to preclude
contact with the gin sawswhile in motion. (d) Access doors, or
covers which guard or provide access to the saw shall be secured
in place by one or more of the following methods: (4) An interlock which
is designed to permit access to the saw cylinder(s) only after the saw cylinder
has come to a complete stop. 

In Producers Cotton Oil Co., Cal/OSHA App. 84-1221, Decision After Reconsideration
(Dec. 31, 1987), the employer was cited for failure to guard the rear access
door of the lint cleaner in its ginning operation. The front door, the normal
access to the saw blades, had positive guarding by means of an interlock that
halted the machine before the door could open. An employee reached into the
rear of the employers machine and had his fingers amputated by the saw
blades of the machine. The Board adopted the ALJs finding that [s]ince
the interlock device guarding the rear access door in question did not prevent
an employee from reaching into the lint cleaner prior to the wind down of the
saw blades, the Board finds that a violation of the safety order occurred.

In this case, the ALJ found: Whatever the distance the blades are inside
the machine, they are in fact inside the machine and the only way an employee
can come into contact with the blades while moving is to intentionally reach
into the machine without lifting the interlocked lid. Based on this the
ALJ found that the point of operation of the machine was guarded to prevent
accidental contact at the time of the accident and in compliance with §
4184(b). We disagree.

We find that Employers trimmer machine was not guarded at its point of
operation as required by the Group 8 regulations. The lack of guarding at the
point where the stock was acted upon by the trimmer knives allowed Aguilars
hand to come in contact with the machines trimmer blades and caused the
serious amputation injury.

With respect to the serious classification, Labor Code section 6432(a)7
provides, in pertinent part, that a serious violation exists if there
is a substantial probability that death or serious physical harm could result
from a [violative] condition in the place of employment
unless the employer did not, and could not with the exercise of reasonable diligence,
know of the presence of the violation. The Appeals Board has consistently
held that a violation is properly classified as serious if, should an accident
occur, there is a substantial probability that an involved employee will suffer
serious injury or death. (California Agri-Systems, Cal/OSHA App. 78-431,
Decision After Reconsideration (Nov. 17, 1980).) To show Employer could have
known of the violative condition by exercising reasonable diligence, the Division
had to prove the violation occurred at a time and under circumstances providing
Employer with a reasonable opportunity to have detected it. (Lights of America,
Cal/OSHA App. 89-400, Decision After Reconsideration (Feb. 19, 1991).)

We find that a serious violation was established because the evidence shows
there was no guard to prevent ones hand from contacting the trimmer knives
when they were in operation and that there is a substantial probability that
serious injury could result from hand contact with operating trimmer knives.
The condition of the unguarded knives was in plain sight. Uriartes testimony
established the unguarded condition existed for some time prior to the accident,
months if not years, and therefore was known to Employer. Had the
machine been guarded in such a manner as to prevent Aguilars fingers from
contacting the knives the injury would not have occurred. Thus, we find that
the violation was accident related and the proposed $5,000 penalty is reasonable.

2. The Independent Employee Action Defense is Unavailable to Employer.

There is no doubt that Aguilar was aware of Employers safety procedure
for clearing a jam in the trimming machine. He was a long-term employee and
was an operator of Employers machines for almost nine years. He testified
that it was his job to un-jam the trimmer machine, and that the proper procedure
for clearing a jammed pot was to lift the cover, meaning the safety gate, which
would immediately stop the trimming knives or hammers. He further
testified that he was trained in the operation of the trimmer machine and trained
not to put his hands into the machine. Aguilar admitted that he reached into
the trimmer machine.

The testimony of Richard Delgado, Employers West Coast General Manager,
established that employees are disciplined for violating Employers safety
rules through a system of progressive discipline up to and including discharge.
Uriarte acknowledged that Employers safety program was a good one.

Employers interlock was installed on the lid atop the trimmer machine
and employees were instructed to use that access way to adjust and clear any
jams. They were also instructed not to put their hands into the machine at the
entryway where the conveyor belt transported the pots to the hammers or trimmer
knives.

Even though Employer established all of the elements of the Mercury Service8
affirmative defense of an independent employee action, the defense is unavailable
in failure to guard cases. The Board has long recognized that where protection
against a particular hazard must be provided by means of positive guarding,
an employers instructions, admonitions, or warnings are not an adequate
substitute. (Bethlehem Steel Corporation, Cal/OSHA App. 78-723, Decision
After Reconsideration (Aug. 17, 1984).) Where positive guarding is required,
the Board has held that an independent employee action defense cannot be used
to excuse an employers failure to provide required guarding. (City
of Los Angeles, Dept. of Public Works, Cal/OSHA App. 85-958, Decision After
Reconsideration (Dec.31, 1986); see also Kaiser Aluminum and Chemical Corp.,
Cal/OSHA App. 80-1014, Decision After Reconsideration (Feb. 19, 1985).)

Since we have found that Employers trimmer machine lacked a required
point of operation guard the independent employee action defense to the cited
violation of section 4184(b) is not available to Employer.

DECISION AFTER RECONSIDERATION

Employers appeal from the serious violation is denied. The $5,000 civil
penalty proposed by the Division is restored and affirmed.

MARCY V. SAUNDERS, Member
GERALD P. OHARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 2, 2002

1 Unless otherwise specified,
all section references are to Title 8, California Code of Regulations.2 At hearing and without objection the issue of
the existence of the violation was litigated.3 Danger zone is [a]ny place
in or about a machine or piece of equipment where an employee may be struck
by or caught between moving parts, caught between moving and stationary
objects or parts of the machine, caught between the material and a moving part
of the machine, burned by hot surfaces or exposed to electric shock. (§
4188(a); emphasis added)4 Feeding is specifically defined as
[t]he process of placing or removing material within or from the point
of operation. (§ 4188(a))5 Inspector Uriarte testified that the knives were
12 inches inside the machine from the point of entry of the pots on the conveyor
belt. He was unable, however, to establish the source of this measurement; he
could not recall whether he measured the distance or some one told him. Figure
G-8 shows the accepted safe openings between the bottom edge of a guard and
feed table at various distances from the point of operation and the various
openings are such that with average size hands, an operators fingers will
not reach the point of operation.6 For instance, Article 64, Pulp, Paper and Paperboard
Mills, §4416, Guillotine Type Roll Splitters, requires that the blade activating
control be either a two-handed control that requires concurrent hand application
for each operator and helper who could reach into the danger zone, or a control
located so that the operator(s) and helper(s) cannot reach into the danger zone
during the cutting process; Article 65, Paper Converting and Printing Machies,
§4437, Index Cutter (Class B) requires all knives or plungers used for
cutting strips off ends of books and similar operations shall be provided with
a guard that will prevent the operators hands coming into contact with
the cutting knife or plunger as it descends; Article 69, Food and Tobacco machinery,
§ 4558, Cigar Cutter, requires that a feed hopper which encloses the knives
be provided through which the material may be fed without the operators
fingers coming in contact with the knives; Article 66, Textiles, § 4464,
Circular Knife, requires that circular knives or discs be equipped with a guard
that will prevent contact with the cutting edges while the machine is in operation.7 For conditions cited as having occurred after
January 1, 2000, changes to Labor Code section 6432(a) reverse the burden of
proof on the knowledge element of a serious classification. Hence,
except for violative conditions occurring after January 1, 2000, the Division
carries the burden of establishing these elements by a preponderance of the
evidence. (Howard J. White, Inc., Cal/OSHA App. 78-741, Decision After
Reconsideration (Jun. 16, 1983).)8 The independent employee action defense is an
affirmative defense wherein the employer is required to prove each of five elements.
Under Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration
(Oct. 16, 1980) the employer is required to show that: (1) the employee was
experienced in the job being performed; (2) the employer has a well-devised
safety program which includes training employees in matters of safety respective
to their particular job assignments; (3) employer effectively enforces the safety
program; (4) employer has a policy which it enforces of sanctions against employees
who violate the safety program; and (5) the employee caused a safety infraction
which he or she knew was contrary to the employers safety program.